39 DOUGLAS, J., dissenting. mandatory. Wolff Co. v. Industrial Court, 262 U. S. 522; Dorchy v. Kansas, 264 U. S. 286. Those cases held that compulsory arbitration violated the Due Process Clause of the Fourteenth Amendment. One can only guess as to what institutions of adjudication we might have in this field today had that experiment been given a chance. The experiment, however, did not survive, and we have had little experience with it." Collective bargaining and mediation are today the norm, except for the period of time in which an injunction is in force. By the terms of § 209, however, any injunction rendered may not continue longer than 80 days. The Act thus permits an injunction restricted in duration and narrowly confined by the requirements of the "national health or safety." When we uphold this injunction we force men back to work when their inactivity has no relation to "national health or safety." Those whose inactivity produces the peril to "national health or safety" which the Act guards against and only those should be covered in the injunction. The rest—who are the vast majority of the 500,000 on strike-should be treated as the employers are treated. They should continue under the regime of collective bargaining and mediation until they settle their differences or until Congress provides different or broader 11 It was stated in S. Rep. No. 105, 80th Cong., 1st Sess., pp. 13-14, in reference to the new machinery for settling labor disputes: "Under the exigencies of war the Nation did utilize what amounted to compulsory arbitration through the instrumentality of the War Labor Board. This system, however, tended to emphasize unduly the role of the Government, and under it employers and labor organizations tended to avoid solving their difficulties by free collective bargaining. It is difficult to see how such a system could be operated indefinitely without compelling the Government to make decisions on economic issues which in normal times should be solved by the free play of economic forces." And see Dishman, The Public Interest in Emergency Labor Disputes, 45 Am. Pol. Sci. Rev. 1100 (1951). DOUGLAS, J., dissenting. 361 U.S. remedies. When we assume that all the steelworkers are producing steel for defense when in truth only a fraction of them are, we are fulfilling the dreams of those who sponsored the House bill and failed in their efforts to have Congress legislate so broadly. Though unlikely, it is possible that, had the District Court given the problem the consideration that it deserves, it could have found that the only way to remove the peril to national safety caused by the strike was to issue the broad, blanket injunction. It may be that it would be found impractical to send only part of the steelworkers back to work. The record in this case, however, is devoid of evidence to sustain that position.12 Furthermore, there is no indication that the District Court ever even considered such a possibility. I am unwilling to take judicial notice that it requires 100% of the workers to produce the steel needed for national defense when 99% of the output is devoted to purposes entirely unconnected with defense projects. The trier of fact under our federal judicial system is the District Court-not this Court nor the Court of Appeals. No finding was made by the District Court on the feasibility of a limited reopening of the steel mills and it is not, as the concurring opinion suggests, the province of the Court of Appeals to resolve conflicts in the evidence that was before the District Court. I would reverse this decree and remand the cause to the District Court for particularized findings 13 as to how the 12 Such an opinion was stated in an affidavit by the Chairman of the Council of Economic Advisers; but that is conclusional only. There has been no sifting of the facts to determine whether defense needs can be satisfied by practical means short of sending all men back to work. 13 The particularized findings necessary are illustrated by those in United States v. Steelworkers, 202 F. 2d 132, 134: "At its Dunkirk plant the company was then engaged in commerce and in the production of goods for commerce, primarily in the 'heat 39 DOUGLAS, J., dissenting. 14 steel strike imperils the "national health" and what plants need to be reopened to produce the small quantity of steel now needed for the national "safety." There would also be open for inquiry and findings any questions pertaining to "national health" in the narrow sense in which the Act uses those words. exchanger, pressure vessel and prefabricated pipe industry'; the threatened strike would not have affected all, or a substantial part, of that industry. A major part of the Dunkirk plant's production was to carry out contracts the company had with the Atomic Energy Commission and certain of its prime contractors to furnish specialized articles which were essential to the completion of the Commission's program for construction of facilities needed to produce atomic bombs for the national defense. These essential articles were heat exchanger shells used in the production of heavy water needed to operate nuclear reactors capable of producing fissionable materials, gas converter assemblies and other critical items all of which could have been obtained elsewhere only after other potential sources had been equipped to produce them. Resort to other sources would, consequently, have involved months of delay and set back correspondingly the construction program of the Commission and the production of fissionable materials and atomic weapons vital to the national defense. The threatened strike would have affected a substantial part of the atomic weapon industry and would have imperiled the national safety." 14 The factor of "safety" may well involve, for example, the need for replacement of equipment on railroad trains. An affidavit of the Secretary of Commerce states: "The continuing availability of most of these steel supplies is vital to the nation's health and safety, used as they are for the production of personal necessities, including surgical instruments, heating and refrigeration equipment, and articles used in the preparation and preservation of food. Steel is also essential to transportation, to the production and transmission of light and power, to the provision of sanitation services, and in the construction and mining industries." But the Government in oral argument conceded that neither that aspect of "safety" nor any other aspect of "safety" apart from military defense is presented by this record, since there are no findings showing the extent to which inventories for those other purposes may be in short supply. 361 U.S. Opinion of the Court. UNITED STATES v. SEABOARD AIR LINE CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 10. Argued October 19, 1959. Decided November 9, 1959. The provision of the Safety Appliance Act requiring power brakes on railroad "trains" applies to movements of an assembled unit consisting of an engine and a substantial number of cars between a classification or assembly yard and industrial plants one or two miles from such yard, over a track through a city which makes an interchange connection with another railroad and crosses at grade five streets, two private roads and four tracks of another railroad, when the cars are either received from a consignor or delivered to a consignee. Pp. 78-83. 258 F. 2d 262, reversed. John F. Davis argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Wilkey, Beatrice Rosenberg and J. F. Bishop. Eppa Hunton IV argued the cause for respondent. With him on the brief was Lewis Thomas Booker. MR. JUSTICE DOUGLAS delivered the opinion of the Court. This is a suit for statutory penalties, instituted by the United States, charging respondent with the operation of four trains in violation of the Safety Appliance Act, 27 Stat. 531, as amended, 32 Stat. 943, 45 U. S. C. §§ 1, 6, 9. That Act requires every "train" moving in interstate traffic to have power brakes on not less than 50% of 1 1 Section 1 provides, in relevant part: "It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with . . . appliances for oper 78 Opinion of the Court. the cars (§§ 1, 9)—a requirement which the Interstate Commerce Commission by regulation has increased to 85%. 49 CFR § 132.1. The penalties are $100 for each violation. § 6. The District Court rendered judgment for respondent and the Court of Appeals affirmed by a divided vote. 258 F. 2d 262. We granted the petition for a writ of certiorari because of the seeming conflict between that ruling and our prior decisions. 358 U. S. 926. Respondent has a "classification or assembly yard” in Hopewell, Virginia. Trains to and from Hopewell use it for breaking up incoming trains and for assembling cars into outgoing trains. A track extends from this "classification" yard for about two miles through the city. In this stretch the tracks make an interchange connection with another railroad and cross, at grade, five streets, two private roads and four tracks of another railroad. Nine spur tracks branch off these tracks to industrial sidings. About two miles from the "classification" yard are plants of the Allied Chemical & Dye Company and Continental Can Company. The complaint charged four violations: First, moving a locomotive and 26 cars as a single unit, without stops, from the track of Allied Chemical to the "classification" yard. Second, moving a locomotive and 28 cars as a single unit, without stops, from the "classification" yard to the track of Allied Chemical. Third, moving a locomotive and 29 cars as a single unit, without stops, from a track near Allied Chemical for about a mile to the interchange ating the train-brake system, or to run any train in such traffic that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose." 2 The statute was amended August 14, 1957, to increase the penalty to $250 (71 Stat. 352, 45 U. S. C. (Supp. V) §6). 525554 O-60-11 |